IN THE CASE OF:	  

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090005155 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Bad Conduct Discharge (BCD) be upgraded to honorable.

2.  The applicant states he was involved in an accident that resulted in a piece of glass being imbedded in his eye.  The pain was unbearable, but the military doctors could not find anything wrong.  After suffering for several months, he obtained pain medication from an outside source.  He was put in for a medical discharge but was told it was on hold so that he could be busted for illegal drugs. After being incarcerated for two weeks, he was sent to Fitzsimons Army Medical Center for evaluation and had his eye removed.  A piece of glass was found to be protruding from the back of his eye.  The extraordinary aspects of his case warrant an honorable discharge.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of 

justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 26 March 1975, completed training, and was assigned duty in Germany.

3.  The majority of applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs and are not available for review.

4.  The available medical records show the following:

	a.  in March 1976, while on field maneuvers, he was involved in an accident receiving an injury to his left eye with loss of vision;  

	b.  due to this injury the applicant was referred to a Medical Evaluation Board. He was found he had lost all visual acuity in his left eye.  The Medical Evaluation Board referred him to a Physical Evaluation Board;  

	c.  a Physical Evaluation Board, convened on 6 October 1976, found him unfit for duty and recommended he be placed on the Temporary Duty Retired List (TDRL) with a 30 percent disability evaluation.

	d.  on 22 November 1976 orders were issued placing him on the TDRL effective 14 December 1976; 

	e.  these orders were revoked on 2 December 1976.

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice as follows:

	a.  on 4 December 1976, for disobeying a lawful order; and 

	b.  on 23 February 1977, for possession of marijuana. 


6.  A bar to reenlistment was imposed on 30 September 1977.  The reasons listed are the above nonjudicial punishment and nonpayment of just debts. 

7.  Although the initial charge sheet, any investigation reports, and the record of trial are not associated with THE file, the record shows the applicant was charged with illegal drug possession and sale.  

8.  Headquarters, 1st Infantry Division General Court-Martial Order Number 12, dated 26 June 1978, shows a general court-martial found the applicant guilty of possession and sale of a narcotic (heroin).  The sentence, adjudged on 1 June 1978, was confinement for 8 years and a dishonorable discharge.  The approved sentence reduced the period of confinement to 3 years.

9.  The record of trial was forwarded to the Court of Military Review.  On 31 October 1978 the Court of Military Review approved the findings of guilty and affirmed the sentence.

10.  The applicant appealed his case to the United States Court of Military Appeals.  The findings issued by the Court of Military Appeals are not of record.

11.  Headquarters, United States Disciplinary Barracks General Court-Martial Order Number 266, dated 21 May 1979, states the applicant's sentence was reduced to a bad conduct discharge on 17 April 1979.

12.  The Army Clemency and Parole Board considered the applicant's case and disapproved restoration to duty and clemency.  It did approve his release on parole effective 6 July 1979.

13.  The applicant was separated with a bad conduct discharge on 6 July 1979.  He had 3 years, 2 months, and 20 days of net service with 404 days of lost time due to incarceration.  His DD Form 214 shows he did not receive any awards or decorations.

14.  The limited medical records show he was treated during his period of incarceration.  No specific information is available to show what this treatment was for or consisted of. 

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The 

honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

17.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U. S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states, in effect, that his illegal drug use was the result of his attempts to relieve the pain from his eye injury or that his injury should be considered in mitigation.

2.  The statutory authority under which this Board was created (Title 10, U.S. Code, section 1552) precludes any action by this Board which would disturb the finality of a court-martial conviction.

3.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  In the absence of evidence that at the time of his drug involvement and court-martial he was so impaired as to be unable to tell right from wrong and to adhere to the right, the nature of his eye condition and care does not mitigate the illegal drug charges and his service was appropriately characterized.  Further, it is noted that the applicant was not charged with using heroin.  He was charged with possession and selling of heroin.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _XXX______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20090005155





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ABCMR Record of Proceedings (cont)                                         AR20090005155



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